Karnataka High Court

Floriana Estate Apartment Owners vs The Commissioner on 16 March, 2021

Author: Alok Aradhe Rangaswamy

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                                            R
        DATED THIS THE 16TH DAY OF MARCH 2021

                          PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

     THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

            W.A. NO.3070 OF 2018 (LB-BMP)
                          IN
            W.P. NO.13214 OF 2018 (LB-BMP)

BETWEEN:

FLORIANA ESTATE APARTMENT OWNERS
WELFARE ASSOCIATION
(REG.NO.154/05-06)
#53, SARJAPURA ROAD
KORAMANGALA 3RD BLOCK
BENGALURU-560034
REP. BY ITS AUTHORISED SIGNATORY.
                                            ... APPELLANT
(BY MR. VIVEK S. REDDY, SR. COUNSEL A/W
    MR. DILLI RAJAN, ADV., FOR
    MR. K.N. SUBBA REDDY, ADV.,)

AND:

1.     THE COMMISSIONER
       BENGALURU DEVELOPMENT AUTHORITY
       BENGALURU.

2.     THE COMMISSIONER
       BBMP, BENGALURU.

3.     THE JOINT DIRECTOR OF TOWN PLANNING-SOUTH
       (PREVIOUSLY JOINT DIRECTOR OF TOWN PLANNING)
       B.B.M.P., BENGALURU.
                                2




4.   THE ASSISTANT DIRECTOR OF TOWN PLANNING
     BANGALORE SOUTH
     B.B.M.P, BENGALURU.

5.   M/S KOLTE PATIL DEVELOPERS LIMITED
     BEING A COMPANY INCORPORATED UNDER THE
     COMPANIES ACT 1956, HAVING ITS
     REGISTERED OFFICE AT NAVIPETH
     DISTRICT JALAGAON
     MAHARASHTRA 048.

     REPRESENTED BY ITS DIRECTOR
     SRI. NARESH PATIL
     AGED ABOUT 54 YEARS
     HAVING THE ABOVE SAID ADDRESS
     AS MENTIONED IN THE CAUSE TITLE.

     CORPORATE OFFICE AT:
     #121, 10TH FLOOR
     THE ESTATE, DICKENSON ROAD
     BESIDE MANIPAL CENTRE
     BENGALURU-560001.

6.   M/S. ANKIT ENTERPRISES
     (A REGISTERED PARTNERSHIP FIRM)
     HAVING OFFICE AT # 121, 10TH FLOOR
     THE ESTATE, DICKENSON ROAD
     BESIDE MANIPAL CENTRE
     BENGALURU-560001.

     REPRESENTED BY ITS PARTNERS
     SRI. RAJESH PATIL
     AND SRI. NARESH PATIL
     AGED ABOUT 54 YEARS
     HAVING THE ABOVE SAID ADDRESS
     AS MENTIONED IN THE CAUSE TITLE.
                                          ... RESPONDENTS
(BY MR.   K.N. PUTTEGOWDA, ADV., FOR R2-R4
    MR.   K. KRISHNA, ADV., FOR R1
    MR.   G.L. VISHWANATH, ADV., FOR R5 & R6
    MR.   ASHOK HARANAHALLI, SR. COUNSEL A/W
    MR.   VINAYAKA B, ADV., FOR R5)
                              ---
                             3




      THIS W.A. IS FILED UNDER SECTION 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED
25.9.2018 IN WP 13214/2018 (LB-BBMP) AND ALLOW THE WRIT
PETITION AS PRAYED FOR.


     THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY,   ALOK ARADHE J., DELIVERED THE
FOLLOWING:

                        JUDGMENT

In this intra court appeal under Section 4 of the

Karnataka High Court Act, 1961 the appellants have

assailed the validity of the order dated 25.09.2018

passed by the learned Single Judge by which writ

petition preferred by the appellant has been dismissed

with cost of Rs.1 Lakh. In order to appreciate the

appellant's challenge to the impugned order, few facts

need mention, which are stated infra:

2. The appellant is an Association of Apartment

Owners viz., M/s Flourina Estate Apartment Owners

Welfare Association. The respondent No.5 is a builder

(hereinafter referred to as 'the builder' for short)

whereas, respondent No.6 is a partnership firm

(hereinafter referred to as 'the firm' for short), which

deals in real estate business. One Smt.Rukmini Devi

Prasad was the owner of land bearing Sy.No.53/1

measuring 5607.22 square meters and land bearing

Sy.No.53/2 measuring 5953.05 square meters, situate

at Jakkasandra, Koramangala, Bangalore. The aforesaid

Smt.Rukmini Devi Prasad applied for change of land use

and permission to change the land use was granted on

19.09.1994 in respect of land bearing Sy.No.53/1 and

Sy.No.53/2 from industrial sector to residential purpose

under Section 15(1) of the Karnataka Town and Country

Planning Act, 1961 for Group Housing Scheme.

Thereafter, the builder applied for sanction of a Group

Housing Scheme which was approved by Joint Director,

Town and Country Planning vide order dated

16.02.2001. The aforesaid sanction plan was approved

in respect of land bearing Sy.No.53/2 with two approach

roads which were to be used as exit and entry points

which were of 6 meters in width. The Builder thereafter

constructed a residential complex viz., M/s Flourina

Estate Apartment Owners Welfare Association and on

completion of the construction, occupancy certificates

were issued by Joint Director of Town and Country

Planning on 19.01.2004 and 22.11.2004 respectively.

Thereafter, the Khata was bifurcated by the Assistant

Revenue Officer, Koramangala by which the land bearing

Sy.No.53/1 and Sy.No.53/2 was sub divided on

26.09.2005. Thereafter the builder obtained sanction for

a separate building plan from Joint Director, Town and

Country Planning for construction of commercial

complex in front of land bearing Sy.No.53/1. A sale

deed was executed by the owner of Sy.No.53/1 and

Sy.No.53/2 viz., Smt.Rukmini Devi Prasad Verma and

Mr.C.A.Joseph in favour of respondent No.6 viz.,

partnership firm and in the aforesaid sale deed, the

respondent No.5, builder was a consenting party to the

sale deed.

3. One of the resident's of M/s Flourina Estate

Apartment Owners Welfare Association viz., Ashok

Kumar Pati challenged the sanction plan dated

26.09.2005 in a writ petition viz., W.P.No.18396/2006.

In the aforesaid writ petition, the builder filed a memo

and furnished an undertaking that it would not raise any

construction according to the building plan, which was

under challenge on 28.08.2009. Thereafter, by a

communication dated 24.05.2010, the Joint Director,

Town and Country Planning, Bruhat Bangalore

Mahanagara Palike (hereinafter referred to as 'the BBMP'

for short) asking whether the bifurcation certificate is

required to be obtained from Bangalore Development

Authority (hereinafter referred to as 'the Authority' for

short) before issuance of sanction plan. A reply was sent

on 21.06.2010 to the aforesaid query by the Town

Planning member of Authority stating that prior order of

bifurcation of site is necessary in accordance with

Bangalore Development Authority bye laws but as the

possession has already been granted, the opinion was

withheld. Another communication was sent by the Joint

Director, Town and Country Planning, BBMP on

30.07.2010 in which a query was raised whether

sanction plan can bee issued on based on special notice

for bifurcation of Khatha issued on 26.02.2005.

Thereafter, sanction to the building plan by the Assistant

Director, Town Planning , BBMP to construct club house,

which was later on withdrawn and occupancy certificate

was denied based on objections of the appellant.

Thereafter, the Commissioner, BBMP and Joint Director,

BBMP sanctioned yet another building plan on

23.03.2011 to construct commercial building in front of

portion bearing Sy.No.53/1.

4. Another writ petition was filed viz.,

W.P.No.49732/2012 by some of the residents viz.,

Amith Bannerjee and 16 others in which challenge was

made to the sanction plan dated 23.03.2011. The

aforesaid writ petition was decided by the learned Single

Judge by an order dated 26.03.2013 and following

directions were issued:

(i) Though I see no reason to quash the impugned NOC and the sanction plan, the third respondent is directed to reconsider the compliance regarding means of access by re- visiting item-10B(1) of the NOC dated 23.01.2009 by recording satisfaction with regard to width of the abutting road by adopting the method for determination as discussed and indicated in paragraphs 24 to 27 of this order.

           (ii)     On        such    determination,       if   the
     requirement         is    satisfied,      the   NOC    dated

23.01.2009 granted shall be reaffirmed or else necessary reasoned order be passed in that regard.

(iii) The said exercise shall be completed by the third respondent within two weeks from the date of receipt of a copy of this order.

(iv) Until the said exercise is completed by the third respondent, the respondents No.4 to 6 shall not proceed with the construction.

(v) if the NOC is re-affirmed by the

shall thereafter ensure that the construction is proceeded only in accordance with the requirements of the NOC and sanction plan.

(vi) The petitions are disposed of with the above directions.

5. The Department of Fire and Emergency

Services of BBMP sent a communication dated

09.04.2014 recommending the acceptance of change of

width of the road on the eastern side of the property

from 6 meters to 9 meters. The firm applied for sanction

of a building plan, which was approved by Joint Director,

Town and Country Planning, BBMP on 21.09.2016 for

construction of front portion on Sy.No.53/1. In response

to the application filed by member of the appellant

Association under the provisions of Right to Information

Act, 2005 the Joint Director, Town and Country

Planning, BBMP stated that no fresh or modified plan

was issued to the builder in respect of Sy.No.53/1 and

Sy.No.53/2. The aforesaid sanction plan was challenged

by the appellant in a writ petition before the learned

Single Judge viz., W.P.No.13214/2018. The said writ

petition was dismissed by the learned Single Judge vide

order dated 25.09.2018 on the ground that the

appellant Association is out to misuse and abuse the

process of law by launching spree of litigation against

the builders. It was further held that at every stage, the

appellant has invoked the writ jurisdiction of this court

to ensure that construction being raised under a duly

sanctioned plan is hampered one way or other. It was

also held that not only two writ petitions were filed by

appellant and were disposed of by this court but also

two civil suits are pending trial. It was also held that

BBMP has already considered the entire matter and has

sanctioned the building plan in accordance with bye laws

and Rules and the practices adopted by the appellant

deserves to strongly deprecated and put down with iron

hands of justice. Accordingly, the writ petition was

dismissed with exemplary cost of Rs.1 Lakh to be

deposited by the appellant. In the aforesaid factual

background, this appeal has been filed.

6. Learned Senior counsel for the appellant

submitted that Sy.No.53/1 and Sy.No.53/2 measuring

11,560 square meters of Jakkasandra Village, Begur

Hobli, Sarjapur Road, Koramangala comprises composite

property. It is pointed out while referring to Annexure-C

to the writ petition that the builder developed the said

property and in the year 2001, obtained composite plan

for both survey numbers and constructed a residential

apartment on land bearing property No.53/1 and sold

the same to 103 members of the appellant Association.

It is also pointed out that occupancy certificate was

granted in respect of property No.53/1 and 53/2 on

16.01.2004 and 22.11.2004 by which ingress and

aggress was provided by way of roads measuring 6 feet

in width on the property on either side. It is also urged

that in the year 2016, the firm by suppressing the fact

of the sanction plan obtained on 16.02.2001, once again

the got a plan sanctioned on 21.09.2016. It is further

submitted that the aforesaid sanction plan was issued in

violation of Section 17 of the Town and Country Planning

Act, as well as building bye laws and zoning regulations.

It is also urged that without seeking modification of the

whole sanction plan BBMP could not have accorded

sanction to the new plan in the year 2016. It is also

pointed out that the partners in the firm are the same

who were directors in the builder.

7. It is further submitted that the subsequent

building plan issued on 21.09.2016 has been obtained

by suppression of facts and by playing fraud. It is

further submitted that ingress and aggress which was

provided by roads of 6 meters in width has been taken

away by the new plan and therefore, sanction plan

constitutes violation of the old plan and Regulations of

the BBMP Bye laws. It is submitted that there is no

bifurcation under Section 17 of the Act and in statement

of objections filed in writ petition No.7807/2019

pertaining to same sanction plan, the BBMP has

admitted the aforesaid facts. It is also pointed out that

new master plan Regulation of 2015 stipulates that

there must be minimum road of 30 meters width for

developing plot of the size of 4000 to 20000 square

meters and such a big size requires 30 meters road in

width compulsorily and the same cannot be developed

without adherence to section 17 of the Town and

Country Planning Act, 1961. it is further submitted that

the firm has unjustly enriched itself by obtaining the

plan and has converted the excess road area to its

development land which effectively means that it has

been granted 3.2 width FAR and has sold the earlier

road to the purchaser.

8. It is also urged that no right to register Khata

can arise until and unless a plot has been sub divided

under Section 17 of the Town and Country Planning Act,

1961 and a Khata cannot be secured without adherence

to Section 17 of the Act. It is also urged that from

perusal of Clause 3.2.10 of the Bangalore Mahanagara

Palike Building Bye Laws, it is evident that Section 17 of

the Act applies to the plot as well and is not confined in

its operation to layout alone. It is also pointed out that

aforesaid clause mentions the documents, which are

required to be obtained from the applicant who seeks

sanction of the plan. Reference has also been made to

clause 3.8 of the Revised Master Plan, 2015 and it has

been contended that means of access to high rise

building has to be provided on a thorough fare of 12

meters in width and this road has to be approved by the

Authority and maintained by the local Authority. It is

also submitted that the firm has illegally developing the

front portion and has thereby diminished the rights of

the residents in hind portion of the property viz., land

bearing property No.53/1. It is further submitted that

right to develop the land is a constitutional right as

guaranteed under Article 300A of the Constitution of

India. In support of aforesaid submissions, reliance has

been placed on decisions in DIPAK KUMAR

MUKHERJEE VS. KOLKATA MUNICIPAL

CORPORATION AND OTHERS, (2013) 5 SCC 336,

T.VIJAYALAKSHMI AND OTHERS VS. TOWN

PLANNING MEMBER AND ANOTHER, (2006) 8 SCC

502, DECISION OF ALLAHABAD HIGH COURT IN

EMERALD COURT OWNER RESIDENT WELFARE

ASSOCIATION VS. STATE OF U.P. THRU SECY. AND

OTHERS, AND DECISION OF THIS COURT IN

J.VENKATESH VS. COMMISSIONER, B.B.M.P., 2016

SCC ONLINE KAR 8293, SMT.NEHA VS. THE

COMMISSIONER AND OTHERS, W.P.NO.27012/12

DATED 23.08.2012.

9. On the other hand, learned counsel for

respondent No.6 - firm submitted that respondent No.6

is the absolute owner and is in possession of land of

Sy.No.53/1 situated Jakkasandra Village, Begur Hobli,

Bangalore South Taluk. It is further submitted that the

aforesaid land has been purchased by the firm vide

registered sale deed dated 31.1.2007 and the khata in

respect of said property is in the name of the firm. It is

pointed out that the firm is constructing a residential

apartment as per the plan sanctioned on 21.09.2016. It

is also submitted that the firm has constructed 5 floors

and has registered the project with Real Estate

Regulatory Authority. It is also urged that appellant has

no locus standi to question the sanction plan as the

Apartment complex in respect of which appellant has

claimed right is situated on Sy.No.53/2 and its residents

have undivided share in Sy.No.53/2. It is pointed out

from the record that land has been sanctioned in favour

of the firm in respect of land bearing Sy.No.53/1 and

land bearing Sy.No.53/1 and Sy.No.53/2 are distinct

parcels of land having been bifurcated in the year 2004

and challenge made by the appellant to the bifurcation

has not been successful and appellant is in no way

aggrieved with the issuance of the plan dated 29.9.2016

sanctioned in favour of the firm. It is also urged that

writ of certiorari cannot be invoked to quash the

permission granted by the Corporation as the same can

be issued against action of judicial or quasi judicial

bodies for exercise of quasi judicial power. It is

contended that issuance of sanction plan is permission /

licence granted by the BBMP under Section 299 of the

Karnataka Municipal Corporation Act which is in the

nature of administrative power of BBMP. Therefore, the

writ of certiorari cannot be issued to quash the sanction

plan.

10. It is also contended that the appellant has

not exhausted the alternative remedy as the appellant

has not made any complaint to the BBMP before

approaching this Court. It is also pointed out that BBMP

has the power to issue notice under Section 308 and

321 of the Karnataka Municipal Corporation Act to the

person putting up such a construction if it deems fit and

such matters have to be contested before Karnataka

Appellate Tribunal or by way of a civil suit. It is also

pointed that during the pendency of this writ appeal the

appellant has made a representation before the BBMP in

the year 2019 in which grievance was made with regard

to the sanction plan which has been questioned before

the learned Single Judge. The BBMP has, on the basis of

the complaint, made by the appellant, has issued notice

to the firm to stop construction. The aforesaid

communication is subject matter of W.P.No.7807/2019

and is pending before the learned Single Judge,

therefore, this appeal is prematured. It is also urged

that the appellant is in the habit of filing frivolous

petitions to ensure that the firm does not put up

construction on the property and the appellant is

meddlesome interloper without any genuine grievance.

11. It is also pointed out that the appellant had

challenged the sanction plan dated 16.02.2001 in

W.P.No.49732/2012 on the ground that apartment

complex provided for 6 meter drive way for entry from

Sarjapur Road and a separate 6 meter exit drive way

but entry and exit to the apartment is only through a

single drive way of 9 meters, the aforesaid drive way did

not comply with fire safety norms and therefore NOC

issued by Fire Force Department is invalid. The said writ

petition was dismissed on 26.03.2013, wherein learned

Single Judge of this court held that there is no reason to

quash the sanctioned plan and directed the Fire Force

Department to ensure compliance regarding NOC by re

visiting the property and to re affirm the NOC if the

same is satisfactory. The Fire Force Department has re

affirmed the NOC issued vide letter dated 26.04.2014

and therefore, the challenge to the plan dated

26.02.2001 has been failed. It is also pointed out that in

W.P.No.24071/2017 Association sought a writ of

mandamus to adhere to the sanction plan dated

26.02.2001 and to direct the builder to complete the

construction of the retention wall in Sy.No.53/1 an

Sy.No.53/2. The aforesaid writ petition was disposed of

by learned Single Judge of this court vide order dated

10.01.2018 holding that retention wall has been

constructed by builder and the same is subject matter of

challenge in W.A.No.769/2018. It is also submitted that

O.s.No.2926/2018 against the Association for a

permanent injunction is pending restraining it from

interfering with the said property as well as

O.S.no.2552/2018 which is a suit filed by the appellant

seeking the relief of permanent injunction which pertains

to Sy.No.53/2 only and fortifies the fact that Sy.No.53/1

and 53/2 are distinct parcels of land.

12. It is submitted that total sital area of 53/1

and 53/2 prior to bifurcation was 11560.27 square

meters and the apartment complex is constructed only

on a total erstwhile sital area and remaining portion of

the erstwhile 53/1 and 53/2 is lying south of the area on

which apartment complex has been constructed have

been further bifurcated and assigned new No.53/1. The

area on which apartment has been constructed is

5953.05 square meters and has been assigned new

No.53/2. The bifurcation has come into force on

01.10.2004. It is also pointed out that the apartment

complex has been constructed and the site has been

bifurcated and assigned new number 53/1 has been

stated in the sale deed executed in favour of the

members of the appellant Association. It is also pointed

out that the bifurcation was called in question by the

appellant and the challenge was repelled by the joint

commissioner some time in the year 2015 and 2016 and

it has attained finality. It is further submitted that

belated challenge to bifurcation is not permissible at this

stage. It is also argued that the appellant has not

demonstrated any prejudice which has caused to it on

account of bifurcation of the remaining land over which

it does not have any right.

13. It is also contended that there has never

been two drive ways of 6 meters each to approach the

apartment complex and there has always been a drive

way of 9 meters from the eastern side of the apartment.

The learned Single Judge has refused to quash the

sanction plan and the order passed by the learned Single

Judge in W.P.No.49732/2012 dated 26.02.2013 has

attained finality. It is also argued that there is drive way

of 9 meters which means that the owners of the

apartment complex have an access to the main road

i.e., Sarjapur Road and FAR is determined on the basis

of public road available to approach the apartment

complex and not the means of access of 9 meters. It is

submitted that the builder has constructed the

apartment complex as per the sanction plan dated

16.02.2001 and therefore, the contention of the

appellant that the firm has suppressed the sanction plan

dated 16.02.2001 to secure the impugned plan is wholly

untenable. It is also submitted that it is incorrect to

state that firm was created only to develop the property

and to secure the plan. It is lastly urged that the writ

appeal deserves to be dismissed with exemplary cost. It

is also pointed out that the decision of the Allahabad

High court relied upon by learned Senior counsel for the

appellant has been stayed by the Supreme Court vide

order dated 05.05.2014 passed in SLP (CC)

No.6754/2014 (DHIRENDER SHARMA AND ORS.

VS. EMERALD COURT OWNERS RES. WEL. ASSOC.

AND ORS.). In support of aforesaid submissions,

reliance has been placed on decision of the Supreme

Court in GREATER KAILASH II WELFARE

ASSOCIATION VS. DLF UNIVERSAL LTD. AIR 2007

SC 1938 AND A DECISION OF THE DIVISION

BENCH OF THE DELHI HIGH COURT IN DLF

UNIVERSAL LTD. VS. GREATER KAILASH II

WELFARE ASSOCIATION, 127 (2006) DLT 131.

14. We have considered the submissions made

on both sides and perused the record. Before proceeding

further we may refer to the well settled legal principles.

The law recognizes the right of person to construct

residential houses in the residential area subject to the

terms and conditions of the statute governing the same.

The Town Planning legislations are regulatory in nature.

The right to property of a person would include right to

construct a building. An illegal and unauthorized

construction of building and other structures not only

violate the municipal laws and the concept of land

development of the particular area but also affect

fundamental rights and constitutional rights of other

persons. In Dipak Kumar Mukherjee supra, the Supreme

Court has taken note of menace of illegal and

unauthorized construction of buildings and other

structures in different parts of the country and has held

that such an activity has acquired monstrous proportion.

It is well settled proposition that in administrative

matter the court should ordinarily defer the decision to

the administrators unless decision is clearly illegal and

shockingly arbitrary and the court cannot sit in appeal

over the decision of the executive. The doctrine of Res

Judicata and Constructive Res Judicata as enshrined in

section 11 of the Code of Civil Procedure applies to the

writ proceeding as well.

15. After having noticed the legal position we

may advert to the facts of the case in hand. The issues

which arise for consideration in this appeal in view of

submissions made at the bar are as follows:

i) Whether a composite plan was prepared in respect of lands situate in survey no. 53/1 and 53/2 which show the exit and entry road of six meters each?

ii) Whether the plan which was sanctioned on 21.09.2016 was obtained by

suppression of earlier sanctioned plan dated 16.02.2001?

iii) Whether the sanctioned plan dated 21.09.2016 has been issued in violation of section 17 of Karnataka Town and Country Planning Act, 1961, the building bye laws, and zoning regulations?

iv) Whether there has been a bifurcation of the plot under section 17 of the Act?

v) Whether the writ petition filed by the association was barred on the principles of Constructive Res Judicata and Res Judicata?

vi) Whether this court can examine the validity of the sanction plan in this proceeding which emanates from an order passed by the learned single judge in exercise of powers under article 226 of the Constitution?

16. The learned single judge has dismissed the

writ petition and has assigned the following reasons for

dismissing the writ petition preferred by the appellant:

8. Having heard the learned counsel for the parties, this court is of the considered opinion that the petitioner-Association seems to be out to misuse and abuse the process of law by launching of spree of litigation against these private Respondents-Builders. At every stage, they have ensured by invoking the Court jurisdiction that the construction being raised under a duly sanctioned plan is hampered one way or the other. Not only two writ petitions came to be filed by them and were disposed of by this Court, but the two civil suits are also pending trial and the issue remains. One, namely, the construction being raised by Respondent No.5-M/s Kolte Patil Developers Limited. The competent public body namely BBMP has already considered the entire matter and sanctioned the building plan in accordance with the bye laws and Rules and at least once, upon the specific direction of the learned Single Judge of this Court.

17. Thus from perusal of para 8 as well as the

order passed by the learned single judge it is evident

that learned single judge without adverting to the issues

raised by the appellant has dismissed the writ petition.

In other words, there is no finding on merits of the

issues raised by the appellant.

[

18. It has rightly been contended by learned

counsel for respondent no. 6, while referring to division

bench decision of Delhi High Court in DLF Universal

Limited supra, which has been affirmed by the Supreme

Court in Greater Kailash Part II Welfare Association and

Ors., this court cannot sit in an appeal over the decision

by an executive authority and the decision in

administrative matters should be referred to the

judgment of the administrators. We may refer to

relevant extract of para 76 of the order passed by the

division bench of Delhi High Court in DLF Universal

Limited supra which was referred to by learned counsel

for respondent no. 6 which reads as under:

"In administrative matters the Court should Therefore ordinarily defer to the judgment of

the administrators unless the decision is clearly illegal or shockingly arbitrary".

19. We are aware of the fact that the power of

remand has to be exercised sparingly, rarest of rare

cases and when the writ petition has not been heard on

merits [See: 'TOWN HOUSE BUILDING CO-

OPERATIVE SOCIETY LTD. V. SPECIAL DEPUTY

COMMISSIONER, AIR 1988 KARNATAKA 312 (FB)].

Even though prima facie we find the submission made

by learned counsel for respondent No.6 that the

controversy raised by association has to be put to rest,

however in peculiar facts and circumstances of the fact

we are unable to do so as the learned single judge has

not dealt with matter on merits and we cannot sit in

appeal in respect of a decision taken by an

administrative authority with regard to sanction of a

map, particularly when determination of aforesaid issue

requires factual adjudication which cannot be done in

this summary proceeding. So far as issue No.5 whether

the writ petition filed by the association was barred on

the principles of res judicata or constructive res judicata,

suffice it to say that in the earlier writ petition, the

subsequent building plan was not in question and the

appellant was informed by communications dated

20.03.2017 and 24.05.2017 by the Joint Director of

Town Planning, BBMP that in reply to the application

under the Right to Information Act, 2005 that no fresh

or modified plan was issued to the builder. Therefore, it

appears that the fact of issuance of the subsequent plan

on 21.09.2016 was not in the knowledge of the

appellant in previous round of litigation. Therefore, the

we hold that the writ petition was not barred by either

on the principles of res judicata or constructive res

judicata. In the peculiar facts of the case since the

issues referred to supra namely issue nos. (i) to (iv) and

(vi) involve factual adjudication, we cannot deal with the

issue of validity of the sanction plan dated 21.09.2016.

20. We may hasten to add here that the

appellant has a remedy under Section 308 and 321 of

the Karnataka Municipal Corporation Act, 1976. Section

308 and 321 of the Act read as under:

"308. Power of Commissioner to require alteration of work.- (1) If the Commissioner finds that the work,-

(a) is otherwise than in accordance with the plans or specifications which have been approved; or

(b) contravenes any of the provisions of this Act or any rule, bye-law, order or declaration made under this Act, he may by notice require the owner of the building within a period state either,-

(i) to show cause why such alterations should not be made; or

(ii) to make such alterations as may be specified in the said notice with the object of bringing the work into conformity with the said plans, specifications or provisions.

(2) If the owner does not show cause as aforesaid he shall be bound to make the alterations specified in such notice.

(3) If the owner shows cause as aforesaid the Commissioner shall by an order cancel the notice issued under sub-section(1) or confirm the same subject to such modifications as he may think fit.

"321. Demolition or alteration of buildings or well work unlawfully commenced, carried on or completed.- (1) If the Commissioner is satisfied,-

(i) that the construction or re-construction of any building or hut or well,-

(a) has been commenced without obtaining his permission or where an appeal or reference has been made to the standing committee, in contravention of any order passed by the standing committee; or

(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or

(c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or

(ii) that any alternation required by any notice issued under Section 308, have not been duly made; or

(iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of Section 320,

he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to brig the work into conformity with the Ac, rules, bye-laws, directions or requisitions as aforesaid, or

with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut.

(2) The Commissioner shall serve a copy of the provisional order made under sub-section(1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.

       (3)   If the owner or builder fails to
show    cause      o    the        satisfaction    of      the
Commissioner,          the     Commissioner             may

confirm the order, with any modification he may think fit and such order shall then be binding on the owner.

(4) If the construction or reconstruction of any building or hut is commenced contrary to the provisions of Section 300 or 314 and the Commissioner is of the opinion that immediate action should

be taken, then notwithstanding anything contained in this Act, a notice to be given under sub-Section (2) shall not be of less duration than twenty-four hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the near such building or hut accompanied by beat of drum, and upon such affixation and publication, all persons concerned shall be deemed, to have been duly informed of the matters stated therein."

21. In the obtaining factual matrix of the case

and in view of preceding analysis, we quash the order

dated 25.09.2018 passed by the learned single judge

and relegate the appellant to take recourse to remedy

provided to it under section 308 and 321 of the Act, if

not already availed of. It is made clear that this court

has not expressed any opinion on merit of the case. At

this stage, the undertaking furnished by respondent

No.6 with regard to the construction during the

pendency of the appeal on 30.04.2019 is worth

mentioning the relevant extract, which reads as under:

                  Per    contra,      Sri.G.L.Vishwanath,
        learned     counsel     for    respondent      No.6

contended that the construction is being made by respondent No.6 strictly in accordance with the sanctioned plan issued by the BBMP on 21.09.2016. He further contended that there were several litigations pending between the parties and two suits filed by them are also pending and the present petitioners had earlier filed W.P.No.48732/2012 and connected petitions to quash the sanctioned plan dated 23.03.2011 issued by BBMP and also the NOC dated 23.01.2009. The learned Single Judge by an order dated 26.03.2013, disposed of the writ petitions with certain observations. The said order passed by the learned Single Judge has reached finality. Therefore, he opposed the interim prayer.

22. Since, we have relegated the appellant to the

statutory remedy, it is directed that construction if any

made by the respondent no. 6 on the land in question

shall be at the risk and consequences of respondent No.

6 and it shall also not be entitled to claim equity in

respect of construction made by it from 30.04.2019 till

the decision is taken by the competent authority under

section 308 and 321 of the Act. Needless to state that

the appellant shall raise a grievance if any before the

competent authority under section 308 and 321 of the

Karnataka Municipal Corporation Act, 1976 within a

period of two weeks from the date of receipt of certified